MELISSA BLOCK, host:
Today, a federal judge ordered the release of one of the detainees at Guantanamo Bay. Mohammad el-Gharani was one of the first prisoners to be brought to the U.S. facility in Cuba in 2002. He was 14 at the time and was arrested in Pakistan on suspicion he was a member of al-Qaeda. The U.S. district court judge ruled he is not an enemy combatant.
MICHELE NORRIS, host:
The fate of the more than 200 detainees left at Guantanamo may be about to change. President-elect Barack Obama has said closing the detention facility will be one of his first orders of business. This week, we're looking at what will happen to those detainees. Yesterday, we examined the issue of where they might go after the prison closes. Today and tomorrow, how the United States might prosecute those charged with acts of terrorism.
John Bellinger is legal adviser to Secretary of State Condoleezza Rice. He's worked extensively on the legal and international issues relating to the detainees. He says there are several options for how to prosecute the remaining detainees who are suspected of terrorism.
Mr. JOHN BELLINGER (Legal Adviser to Secretary of State Condoleezza Rice): Three models are essentially the federal criminal system, a court-martial system, or the existing military commissions system that we have right now. The problem about trying to try these individuals or future individuals captured outside the United States and federal courts is that with respect to the people at Guantanamo, many of them really were outside the jurisdiction of our federal laws to begin with, that the laws on the books on 9/11 didn't even cover their activities outside the United States.
Second, most of them were captured by our soldiers outside the United States. So the evidence relating to them, the witnesses relating to their conduct, is all outside the United States. So it would be very difficult to try them in federal courts.
NORRIS: Are you saying that it would be very difficult or impossible?
Mr. BELLINGER: In some cases impossible. As we capture additional people going forward, maybe some of them could be tried in our federal courts. Although it's a good question as to whether President-elect Obama wants to say to the military that if they capture a terrorist, that that person has to be brought back to the United States and then tried in a federal court. And is that really what our military is for?
NORRIS: The Pentagon said yesterday that 61 former detainees who were released, quote, "returned to the fight against the U.S.," meaning that they had turned to some form of terrorism. So for those detainees who are deemed dangerous or for whom no clear evidence exists for prosecution, what should be done with the prisoners that fall in that category?
Mr. BELLINGER: Well, that is the most difficult question. There is going to be some number of people, as I understand it from the Defense Department, who cannot be tried, but we deem are too dangerous to release. And so they would need to be - continued to be held. Now, one of the biggest questions right now about closure of Guantanamo, and indeed with respect to any detention at all, is what is the legal framework for holding the Guantanamo detainees or frankly for people who may be captured in the future?
This administration has held people who are captured as enemy combatants, people who are fighting us in a war. The next administration will need to decide both with respect to the people who are in Guantanamo now, and again with respect to people who they may capture in the future, are they holding those people as enemy combatants or will they say we're only going to hold people who we think that we could try in a federal criminal court?
NORRIS: Why is that distinction important?
Mr. BELLINGER: Well, because the enemy combatant label has been one that has been controversial both inside the United States and outside the United States. On the other hand, if that legal theory of holding people because they're enemy combatants is jettisoned, then the next administration will have to have a different legal theory for holding people. Many people, and I'll have to say myself included, have supported seeking congressional legislation that clarifies who can be held, even if in some cases they couldn't be tried.
NORRIS: With the clarity of hindsight, as you look at Guantanamo where you started, or you've wound up now, as the Bush administration is shutting the doors and closing out the lights. Are there things that you would do differently from the start?
Mr. BELLINGER: Well, certainly I think we've made many mistakes along the way. One of them was certainly not to involve the international community earlier on by holding the individuals ourselves, even though they frankly posed a threat to the world. And this is something that we've had a very difficult time explaining to the rest of the world. But because Guantanamo was set up initially solely as a U.S. operation, we have allowed other countries to distance themselves from Guantanamo. They don't acknowledge that, in fact, there is a benefit to the individuals who are being held there. And that really has been one of the unfortunate byproducts of Guantanamo is by not having greater international involvement.
NORRIS: John Bellinger is legal adviser to Secretary of State Condoleezza Rice. Thanks so much for being with us.
Mr. BELLINGER: Thank you.
NORRIS: And tomorrow, in the final part of our series, we'll take a look at the argument for trying the detainees in a federal court. And you can hear the first part of our series at npr.org.